NEW SOUTH WALES COUNCIL FOR CIVIL LIBERTIES. Background Paper

Transcription

1 NEW SOUTH WALES COUNCIL FOR CIVIL LIBERTIES Background Paper Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty (annexing a draft Death Penalty Abolition Amendment Bill 2008) Background Paper 2005/4 2 January 2008 (3 rd edition) Author: Michael Walton

2 About the NSW Council for Civil Liberties The New South Wales Council for Civil Liberties ( CCL ) is committed to protecting and promoting civil liberties and human rights in Australia. CCL is a Non-Government Organisation (NGO) in Special Consultative Status with the Economic and Social Council of the United Nations, by resolution 2006/221 (21 July 2006). CCL was established in 1963 and is one of Australia s leading human rights and civil liberties organisations. Our aim is to secure the equal rights of everyone in Australia and oppose any abuse or excessive power by the State against its people. About this publication With the exception of section 4.4, this paper was written by Michael Walton. Section 4.4 was written by a member of the NSW Council for Civil Liberties who has asked not to be named. Third edition: 2 January 2008 Second edition: 30 May 2006 First edition: 4 April 2005 This paper was originally prepared in 2005 for the Federal Parliamentary Cross-Party Working Group Against the Death Penalty NSW Council for Civil Liberties For permission to reproduce this document in part or in whole, please: office@nswccl.org.au or write to NSW Council for Civil Liberties, PO Box 201 Glebe NSW 2037, Australia. Abbreviations BP Background Paper CCL New South Wales Council for Civil Liberties Cth Commonwealth of Australia ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights Imp Imperial NSW New South Wales UDHR Universal Declaration of Human Rights (1948) UN United Nations UNHCHR UN High Commissioner for Human Rights CCL BP 2005/4 Page 2 2 January 2008

3 Contents 1. EXECUTIVE SUMMARY SECOND OPTIONAL PROTOCOL ABOLITION BEFORE THE PROTOCOL ADOPTION OF THE PROTOCOL CURRENT STATUS OF THE PROTOCOL LEGAL IMPLICATIONS OF ABOLITION OBLIGATION NOT TO EXPOSE ANYONE TO EXECUTION ONCE ABOLISHED, ALWAYS ABOLISHED DRAFT BILL TO IMPLEMENT THE PROTOCOL THE CASE FOR ADOPTING THE PROTOCOL DEATH PENALTY ABOLITION ACT DEATH PENALTY ABOLITION AMENDMENT BILL Sections 1, 2 and Section 4 (Preamble) Section 5 (Application of the Act) Section 6 (Object, Operation and Interpretation) Section 7 (Schedule the Protocol) DEATH PENALTY ABOLITION AMENDMENT (REQUEST) BILL how does the request work? reservations about relying on the request power does the Federal Parliament have to accede to a request? effect of repeal of legislation of requesting legislation does there need to be unanimity on the part of the States? ANATOMY OF THE SECOND OPTIONAL PROTOCOL INTRODUCTION PREAMBLE ARTICLE 1: ABOLITION OF THE DEATH PENALTY ARTICLE 2: WARTIME EXCEPTION ARTICLE 3: REPORTING OBLIGATIONS ARTICLES 4 & 5: COMPLAINTS PROCEDURES ARTICLE 6: ABOLITION IS ABSOLUTE (NON-DEROGABLE) ARTICLES 7 & 8: PROCEDURAL ISSUES ARTICLE 9: FEDERAL JURISDICTIONS ARTICLES 10 & 11: HOUSEKEEPING ISSUES...30 APPENDIX 1: DEATH PENALTY ABOLITION ACT APPENDIX 2: DEATH PENALTY ABOLITION AMENDMENT BILL APPENDIX 3: DEATH PENALTY ABOLITION AMENDMENT (REQUEST) BILL CCL BP 2005/4 Page 3 2 January 2008

4 1. Executive Summary 1. The year 2008 marks the 60 th anniversary of the Universal Declaration of Human Rights. In the spirit of the Universal Declaration, this paper argues that the federal Parliament of Australia should pass legislation adopting into Australian law the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty ( the Protocol ). 2. The Second Optional Protocol is one of five international human rights treaties that make up the International Bill of Human Rights. 1 International Bill of Human Rights Universal Declaration of Human Rights (1948) International Covenant on Economic, Social and Cultural Rights (1966) International Covenant on Civil and Political Rights (1966) Optional Protocol to the International Covenant on Civil and Political Rights (1966) Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (1990) 3. The Second Optional Protocol creates an absolute (or non-derogable ) individual human right not to be executed and prohibits the execution of anyone under the law of a ratifying country. 2 The Protocol also carries two important implications: it prohibits the reintroduction of the death penalty; 3 and it obliges a country in all circumstances to ensure it exposes no one to the real risk of execution Australia acceded to the Second Optional Protocol on 2 October The Protocol entered into force in international law on 11 July It has currently been ratified by 64 nations, and signed by a further 8 countries The Second Optional Protocol has not been adopted into domestic law and therefore is not legally binding in Australian courts. This means that a populist State government could reintroduce the death penalty. In 1990, when the Protocol was ratified, the adoption of the Protocol into domestic law was not considered necessary because all Australian jurisdictions had abolished the death penalty. Over the last few years however, there have been voices calling for the reintroduction of capital punishment in Australia. 7 1 UN High Commissioner for Human Rights, < 2 at the time of ratification a State Party to the Protocol can make certain reservations: see Article 2: wartime on page 25 & Articles 4 & 5: complaints procedures on page 27. See also: Article 6: abolition is absolute (non-derogable on page see Once abolished, always abolished on page see Obligation not to expose anyone to execution on page the process of accession involves the simultaneous signing and ratification of a treaty. 6 signing a treaty is the first step in ratifying it, but does not bind the signatory country. 7 see [46]. CCL BP 2005/4 Page 4 2 January 2008

5 6. Australia has an obligation under the Protocol to take all necessary measures to ensure that the death penalty cannot be reintroduced. This paper argues that this obligation requires the federal Parliament to adopt the Protocol into domestic law binding the States. This will help to ensure that a populist State government cannot reintroduce capital punishment. 7. It is also worth noting that a recent poll in the Bulletin magazine found that a majority of Australians believe that the death penalty should not be reintroduced In March 2009, Australia s Fifth Report to the United Nations Human Rights Committee is due to be considered in New York City. 9 Adopting the Second Optional Protocol into domestic law before Australia appears before the Committee would help to reduce any adverse comment from the Committee. It would show that Australia is committed to the abolition of capital punishment. 9. A draft Bill to adopt the Second Optional Protocol into Australian law is annexed to this paper 10 and is explained in more detail in Death Penalty Abolition Amendment Bill 2008 on page 18. This Bill relies on the external affairs power of the federal Parliament and does not require the consent of the States. 10. The view of the Howard government was that all State governments should positively approve the federal Bill adopting the Protocol into domestic law. The NSW Council for Civil Liberties ( CCL ) believes that this is not necessary, because all the States have already abolished the death penalty. However, in case the Rudd government takes the same view as the Howard government, then also annexed to this paper is a draft model State Bill requesting the adoption of the Second Optional Protocol into Australian law Patrick Carlyon, Swinging Voters The Bulletin (Sydney) 1 March A majority of those polled (48.7% versus 46.5%) believed the death penalty should not be reintroduced in Australia. Curiously, a majority of the same people polled supported capital punishment (49.1% versus 46.8%). 9 see UN Human Rights Committee, Sessions, < The reporting obligation is pursuant to article 40 of the International Covenant on Civil and Political Rights (1966). 10 see Appendix 2: Death Penalty Abolition Amendment Bill 2008 on page see Appendix 3: Death Penalty Abolition Amendment (Request) Bill 2008 below. CCL BP 2005/4 Page 5 2 January 2008

6 2. Second Optional Protocol 2.1 abolition before the Protocol 11. Prior to the Second World War, only 8 nations had abolished the death penalty. 12 The first country to do so was Venezuela in The Universal Declaration of Human Rights (1948) does not mention the death penalty. This was largely because there was no international consensus on the abolition of capital punishment at the time By the time the International Covenant on Civil and Political Rights ( ICCPR ) was adopted by the UN General Assembly in 1966, the international abolitionist movement was growing in strength. 14 The ICCPR restricts retentionist countries to using the death penalty only for the most serious crimes and only after the final judgment of a court, 15 to providing a process of commutation 16 and prohibits the execution of pregnant women and juveniles below 18 years of age. 17 Article 6 of the ICCPR is concerned with the inherent right to life of every human being and reflects the underlying connection made between the right to life and capital punishment in the middle of the twentieth century By the 1970s a need was perceived to create an international treaty that nations could sign, aiming at total global abolition of capital punishment. In 1977, the human rights group Amnesty International organised a highly influential international conference in Sweden on the issue of the death penalty and its abolition Venezuela, San Marino, Costa Rica, Panama, Ecuador, Uruguay, Colombia & Iceland: UN Secretary-General, Capital Punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, (24 July 2000) UN Doc. E/2003/3, Annex William Schabas, The Abolition of the Death Penalty in International Law (2002, 3 rd ed) Schabas, n 13, ICCPR article 6(2). 16 ICCPR article 6(4). 17 ICCPR article 6(5). 18 by the late 20 th century the focus had shifted to viewing the death penalty as cruel and inhuman punishment: see NSW Council for Civil Liberties, The Death Penalty in Australia and Overseas (March 2005) BP 2005/3. 19 Schabas, n 13, 282. CCL BP 2005/4 Page 6 2 January 2008

7 2.2 adoption of the Protocol 15. The first draft of an optional protocol to the ICCPR was submitted to the UN General Assembly in The draft was sponsored by Austria, Costa Rica, the Dominican Republic, the Federal Republic of Germany, Italy, Portugal and Sweden. It was attached to a draft resolution aiming at the ultimate abolition of the death penalty. 16. Throughout the 1980s, the United Nations sponsored international talks to determine the need for, and shape of, any abolitionist protocol. A Special Rapporteur was appointed, Mr Marc Bossuyt, to guide the process. Mr Bossuyt wrote a report on the death penalty. 21 The text of the draft optional protocol prepared by the Special Rapporteur, and attached to his report, was adopted without alteration by the UN. 17. In 1989, the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty was presented to the General Assembly of the United Nations. 22 Australia was one of the 31 sponsors of the draft resolution. On the 15 December 1989 the Second Optional Protocol was adopted by the General Assembly with 59 votes in favour, 26 votes against and 48 abstentions. 23 Voting against the resolution were the US, China, Japan and a block of Islamic states. 18. New Zealand was the first country to ratify the Protocol on 22 February Australia was the third country to accede to the Protocol on 2 October After receiving the required ten ratifications, the Protocol entered into force in international law on 11 July Measures aiming at the ultimate abolition of capital punishment. Draft 2nd Optional Protocol to the International Covenant on Civil and Political Rights : draft resolution (21 November 1980) UN Doc A/C.3/35/L/75. See also: Schabas, n 13, Marc Bossuyt, Analysis Concerning the Proposition to Elaborate a Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty (29 June 1987) UN Doc. E/CN.4/Sub.2/1987/ Elaboration of a 2nd Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty: draft resolution (10 November 1989) UN Doc A/C.3/44/L UN General Assembly, Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty (15 December 1989) UN Doc A/RES/44/ Department of Foreign Affairs and Trade, Australian Treaties Database, (last updated 1/6/2006),< CD6F>. Text of Protocol: < CCL BP 2005/4 Page 7 2 January 2008

8 2.3 current status of the Protocol 19. As at 17 October 2007, 64 countries have ratified the Protocol, with a further 8 nations adding their signature to it. The full list of these 72 nations follows: Participant Signature Ratification Participant Signature Ratification Albania. 17 Oct 2007 Mexico. 26 Sep 2007 Andorra 5 Aug Sep 2006 Moldova. 20 Sep 2006 Argentina 20 Dec Monaco. 28 Mar 2000 Australia. 2 Oct 1990 Montenegro. 23 Oct 2006 Austria 8 Apr Mar 1993 Mozambique. 21 Jul 1993 Azerbaijan. 22 Jan 1999 Namibia. 28 Nov 1994 Belgium 12 Jul Dec 1998 Nepal. 4 Mar 1998 Bosnia & Herzegovina 7 Sep Mar 2001 Netherlands 9 Aug Mar 1991 Bulgaria 11 Mar Aug 1999 New Zealand 22 Feb Feb 1990 Canada. 25 Nov 2005 Nicaragua 21 Feb Cape Verde. 19 May 2000 Norway 13 Feb Sep 1991 Chile 15 Nov Panama. 21 Jan 1993 Colombia. 5 Aug 1997 Paraguay. 18 Aug 2003 Costa Rica 14 Feb Jun 1998 Philippines 20 Sep Croatia. 12 Oct 1995 Poland 21 Mar Cyprus. 10 Sep 1999 Portugal 13 Feb Oct 1990 Czech Republic. 15 Jun 2004 Romania 15 Mar Feb 1991 Denmark 13 Feb Feb 1994 San Marino 26 Sep Aug 2004 Djibouti. 5 Nov 2002 Sao Tome & Principe 6 Sep Ecuador. 23 Feb 1993 Serbia. 6 Sep 2001 Estonia. 30 Jan 2004 Seychelles. 15 Dec 1994 Finland 13 Feb Apr 1991 Slovakia 22 Sep Jun 1999 France. 2 Oct 2007 Slovenia 14 Sep Mar 1994 Georgia. 22 Mar 1999 South Africa. 28 Aug 2002 Germany 13 Feb Aug 1992 Spain 23 Feb Apr 1991 Greece. 5 May 1997 Sweden 13 Feb May 1990 Guinea-Bissau 12 Sep Switzerland. 16 Jun 1994 Honduras 10 May FYROM. 26 Jan 1995 Hungary. 24 Feb 1994 Timor-Leste. 18 Sep 2003 Iceland 30 Jan Apr 1991 Turkey 6 Apr Mar 2006 Ireland. 18 Jun 1993 Turkmenistan. 11 Jan 2000 Italy 13 Feb Feb 1995 Ukraine. 25 Jul 2007 Liberia. 16 Sep 2005 United Kingdom 31 Mar Dec 1999 Liechtenstein. 10 Dec 1998 Uruguay 13 Feb Jan 1993 Lithuania 8 Sep Mar 2002 Venezuela 7 Jun Feb 1993 Luxembourg 13 Feb Feb 1992 Malta. 29 Dec 1994 source data: UN High Commissioner for Human Rights UN High Commissioner for Human Rights, Ratifications and Reservations, < (as at 17 October 2007). CCL BP 2005/4 Page 8 2 January 2008

9 20. Given the increasing number of nations ratifying the Second Optional Protocol, the international trend is unmistakably in favour of abolition, as the following graph demonstrates: International Trend Towards Abolition number of nations year 2nd Optional Protocol Ratifications Abolitionist Nations source data: UN High Commissioner for Human Rights & Amnesty International UN High Commissioner for Human Rights, n 25. Amnesty International, Death penalty: Countries abolitionist for all crimes, < (as at 26 September 2007). CCL BP 2005/4 Page 9 2 January 2008

10 3. Legal implications of abolition 21. Two important implications arise from abolishing the death penalty and ratifying the Second Optional Protocol. The first implication is that an abolitionist country is obliged to ensure that it exposes no one to the real risk of execution. The second implication is that the death penalty can never be reintroduced without violating international law. 3.1 Obligation not to expose anyone to execution 22. The UN Human Rights Committee is responsible for interpreting the ICCPR and the Second Optional Protocol In 1997, the UN Human Rights Committee found that the Second Optional Protocol obliges ratifying nations not to expose anyone to the real risk of execution for any offence. In 2003, the Committee found that the ICCPR itself places the same obligation on ratifying countries that have abolished the death penalty. 24. Both the ICCPR and the Protocol are silent on the law of extradition. 28 They do not expressly prohibit the extradition of a fugitive to a retentionist nation. There is no mention of extradition in the Special Rapporteur s report on the Protocol. In 1994, some members of the UN Human Rights Committee were of the view that the Protocol does not affect the law of extradition. 29 However, the Committee s jurisprudence has developed since then. 25. In 1997, the UN Human Rights Committee heard two important refoulement (return) cases against Australia. In ARJ v Australia and GT v Australia the Committee concluded that the Protocol carries with it an implication that Australia should not expose anyone to a real risk of capital punishment ARJ, an Iranian national, was convicted of drug supply in Australia. After he had served his sentence, Australia wanted to deport him to Iran. Mr J argued unsuccessfully in the Australian courts that he could face the death penalty if returned to Iran. Mr J complained to the UN Human Rights Committee, arguing that if Australia deported him to Iran then it would violate his right to life (ICCPR Article 6). 27 Australia recognises the competence of the UN Human Rights Committee to receive and consider complaints by declaration made on 28 January 1993 under ICCPR Article 41 (complaints from States), ratification of the First Optional Protocol to the ICCPR (complaints from individuals) and the Second Optional Protocol to the ICCPR (Articles 4 & 5). 28 for more information on capital punishment and extradition: see NSW Council for Civil Liberties, The Death Penalty in Australia and Overseas (March 2005) BP 2005/3. 29 Cox v Canada (1994) UN Doc CCPR/C/52/D/539/1993 (joint opinion of Herndl & Sadi). See also: Schabas, n 13, ARJ v Australia (1997) UN Doc CCPR/C/60/D/692/1996 (no violation no real risk of execution if returned to Iran); and, GT v Australia (1997) UN Doc CCPR/C/61/D/706/1996 (no violation no real risk of execution if returned to Malaysia). CCL BP 2005/4 Page 10 2 January 2008

11 27. The beginning of Article 6 of the ICCPR states: Article 6 Right to Life 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes 28. The Committee observed that the ICCPR does not necessarily require Australia to refrain from deporting an individual to a State which retains capital punishment. 31 Reading paragraphs 6(1) and 6(2) together, the Committee concluded that Australia would only violate the ICCPR if it exposed Mr J to a real risk of being executed for offences other than the most serious crimes. 32 The Committee defined a real risk as a necessary and foreseeable consequence. 33 The Committee accepted the evidence of Australia that Mr J was not at risk of execution if returned to Iran and therefore found no violation of the ICCPR. 29. A few months after publishing its observations in ARJ v Australia, the Committee examined the case of GT v Australia. GT, an Australian citizen, was married to Mr T, a Malaysian citizen who was under threat of deportation from Australia to Malaysia. Mr T had been convicted in Australia of importing drugs from Malaysia. After he had served his sentence, Australia wanted to deport him to his homeland. Mrs T complained to the UN Human Rights Committee, arguing that if Australia deported her husband to Malaysia then it would violate his right to life (ICCPR Article 6) because drug offences in Malaysia attract a mandatory death sentence. 30. In this case, the Committee modified its interpretation of Australia s human rights obligations. The Committee observed that Australia has ratified the Second Optional Protocol, which imposes additional obligations. Whereas the ICCPR imposes an obligation not to expose anyone to the real risk of execution for offences other than the most serious crimes, the Protocol imposes a broader obligation not to expose anyone to the real risk of execution for any offence. By majority, the Committee found no violation of the ICCPR because it accepted Australia s evidence that Mr T would not face execution if returned to Malaysia. 31 ARJ v Australia (1997) UN Doc CCPR/C/60/D/692/1996, [6.13]. 32 ARJ v Australia (1997) UN Doc CCPR/C/60/D/692/1996, [6.11]. 33 ARJ v Australia (1997) UN Doc CCPR/C/60/D/692/1996, [6.8]. CCL BP 2005/4 Page 11 2 January 2008

12 31. In 2003, the Committee revisited and revised this jurisprudence. The case of Judge v Canada involved a US citizen, Mr Judge, who was sentenced to death in the US for murder. Mr Judge escaped his US prison and fled to Canada, where he committed two robberies and was sentenced to 10 years prison. When Canada tried to deport Mr Judge back to the United States, he sent a complaint to the UN Human Rights Committee alleging a violation by Canada of his right to life The Committee departed from its earlier decision in ARJ and reinterpreted paragraphs 6(1) and 6(2) of the ICCPR: 35 Paragraph 1 of article 6, which states that Every human being has the inherent right to life is a general rule: its purpose is to protect life. States parties that have abolished the death penalty have an obligation under this paragraph to so protect in all circumstances. For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. 33. Unlike its earlier decision in ARJ v Australia, the Committee concluded that paragraph 6(2) only applies to those State parties that have not abolished the death penalty. Therefore abolitionist countries are obliged by paragraph 6(1) to protect life in all circumstances. The implied obligation on all abolitionist countries is that they will not expose anyone to the real risk of execution. This is the same obligation implied under the Second Optional Protocol. The obligation attaches whether an abolitionist party to the ICCPR has ratified the Protocol or not The Committee went on to conclude that Canada (an abolitionist country) would violate Mr Judge s right to life by deporting him to the United States (a retentionist country) without first obtaining a guarantee that Mr Judge would not be executed. 35. In Judge v Canada the UN Human Rights Committee states that abolitionist nations are obliged to protect life in all circumstances. This clearly extends beyond non-refoulement (non-return) obligations in extradition or deportation cases and includes all actions by a State and its agents. This includes, for example, the actions of Australia Federal Police when cooperating or sharing information with foreign police agencies in retentionist countries. 34 Judge v Canada (2003) UN Doc CCPR/C/78/D/829/ Judge v Canada (2003) UN Doc CCPR/C/78/D/829/1998, [10.4]. 36 Judge v Canada (2003) UN Doc CCPR/C/78/D/829/1998, [10.6]. CCL BP 2005/4 Page 12 2 January 2008

13 3.2 Once abolished, always abolished 36. The Second Optional Protocol implicitly prohibits the reintroduction of the death penalty. Before a ratifying nation 37 could lawfully execute someone, that nation would have to withdraw from the Protocol. But, unusually, there is no withdrawal mechanism. This means that once a nation has ratified the Protocol, capital punishment is abolished forever. 37. Many international treaties contain procedural clauses detailing how a State Party can withdraw from that treaty. For example, article 12 of the First Optional Protocol to the International Covenant on Civil and Political Rights provides a procedure for denunciation of that protocol. The Second Optional Protocol has no such procedure. 38. When there is no explicit procedure for withdrawal from an international treaty, the default withdrawal mechanism from the Vienna Convention on the Law of Treaties applies. 38 The first way to withdraw is with the consent of all the parties to the treaty (article 54). If any party were to seek this consent to withdraw from the Second Optional Protocol, it is unlikely it would be granted by all the other parties. 39. The only other way to lawfully withdraw from a treaty is in accordance with article 56 of the Vienna Convention: Article 56: Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal 1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty. 2. A party shall give not less than twelve months' notice of its intention to denounce or withdraw from a treaty under paragraph that is, any ratifying nation that has not reserved the right to execute in wartime pursuant to article 2 of the Protocol: see Article 2 on p Vienna Convention on the Law of Treaties (1969); [1974] ATS 2. Entry into force on 27 January 1980, < CCL BP 2005/4 Page 13 2 January 2008

14 40. Under the terms of article 56(1)(a), any attempt to argue that the parties intended to admit withdrawal is unlikely to succeed. A treaty should be interpreted in good faith and in accordance with its object and purpose. 39 The very name of the Protocol states that it is a treaty for the abolition of the death penalty, not for its reintroduction. To confirm this view, recourse may be had to the preparatory work of the treaty. 40 Given that the UN adopted the Special Rapporteur s draft Optional Protocol without alteration, the Special Rapporteur s report is the principal travaux préparatoires of the Second Optional Protocol. 41 The Special Rapporteur considered it unnecessary to include a provision in the Protocol to explicitly prohibit the reintroduction of capital punishment: 42 It is obvious that a State Party to the second optional protocol could not re-establish the death penalty without manifestly violating that protocol. Indeed, a re-establishment of capital punishment would be contrary to the very object and purpose of the second optional protocol. 41. Under the terms of article 56(1)(b), any attempt to argue that the nature of the Protocol requires the necessary implication of a denunciation mechanism is also unlikely to succeed. As described above, the nature of the Protocol is such that it does not contemplate reintroduction of the death penalty. 42. While this leads to the conclusion that there is no withdrawal mechanism from the treaty, such a conclusion is not a settled point of law and is yet to be tested. However, there is also obiter dicta from the UN Human Rights Committee 43 and comments from academic writers 44 that support this once abolished, always abolished interpretation. 43. It is also worth noting that a recent poll in the Bulletin magazine found that a majority of Australians believe that the death penalty should not be reintroduced Vienna Convention on the Law of Treaties (1969) article 31(1). 40 Vienna Convention on the Law of Treaties (1969) article See also Schabas, n 13, 181 (discussion of travaux of the Protocol). 42 Bossuyt, n 21, [162]. 43 Cox v Canada (31 October 1994) UN Doc CCPR/C/52/D/539/1993 (concurring joint opinion of Herndl & Sadi). 44 Schabas, n 13, Patrick Carlyon, Swinging Voters The Bulletin (Sydney) 1 March See n 8 above. CCL BP 2005/4 Page 14 2 January 2008

15 4. Draft Bill to implement the Protocol The federal Parliament should enact legislation to adopt the Second Optional Protocol into domestic law. That legislation should bind the States, in accordance with Australia s obligations under article 9 of the Protocol the case for adopting the Protocol 44. When a treaty is ratified it does not automatically become Australian law. 47 To become legally binding in Australia, legislation must be passed incorporating the treaty, in part or whole, into Australian law. 48 Federal Parliament can choose to make that enabling legislation binding on the federal government, on the territories 49 and even on the States. 50 While such legislation can be passed without the approval of all the States, 51 the process can also be done cooperatively. 45. When Australia acceded to the Second Optional Protocol in 1990, the death penalty had been abolished federally, in all the territories and in all the States. 52 In 1990, the Australian foreign minister expressed the opinion that the Protocol simply reflected the local situation in Australia. 53 There appeared to be no need to enact legislation to adopt the Protocol into Australian law. 46 see Article 9: federal jurisdictions on page Kioa v West (1985) 159 CLR 550, 570 (Gibbs CJ). 48 using the external affairs power : Constitution s 51(xxix). See also: Leslie Zines, The High Court and the Constitution (1997, 4 th ed), ; also, Tony Blackshield and George Williams, Australian Constitutional Law and Theory (2002, 3 rd ed), using the territories power : Constitution s using the external affairs power [Constitution s 51(xxix)] and relying on the constitutional rule that federal laws trump state laws [Constitution s 109]. See Victorian Parliament, Federal-State Relations Committee, Report on International Treaty Making and the Role of the States (2 October 1997) [1.46], < See also: Blackshield & Williams, n 48, e.g. Human Rights (Sexual Conduct) Act 1994 (Cth) was used to override those sections of Tasmania s Criminal Code that criminalised homosexuality. 52 see NSW Council for Civil Liberties, The Death Penalty in Australia and Overseas (March 2005) BP 2005/3. 53 Evidence to Estimates Committee B, Commonwealth, Senate, 4 September 1991, 70 (Senator Gareth Evans, Minister for Foreign Affairs and Trade). CCL BP 2005/4 Page 15 2 January 2008

16 46. But despite the fact that Australia has signed the Protocol, there are still regular calls for the States to reintroduce capital punishment. For example, there have been calls for a referendum on the death penalty in Queensland, 54 Western Australia 55 and New South Wales. 56 In 2003, the Australian Prime Minister John Howard encouraged the States to debate reintroduction of the death penalty. 57 The rise of the One Nation party has added fuel to this debate. 58 The South Australian branch of One Nation went to the 2006 State elections with a policy of mandatory capital punishment for manufacturers & traffickers of hard drugs, and perpetrators of serial homicides, premeditated homicides and child homicides If a State legislature introduced a mandatory death penalty for any crime, there are no national or State-based Bills of Rights to prohibit such a law. 60 It is not even certain that the High Court could strike down such a law as unconstitutional. The High Court might apply the Kable principle to ensure that State parliaments do not interfere in judicial sentencing discretion, 61 however the Kable principle has been continuously narrowed to the point of non-existence Article 1(2) of the Second Optional Protocol commits Australia to take all necessary measures to abolish the death penalty. The NSW Council for Civil Liberties believes that adopting the Second Optional Protocol into domestic law binding the Australian States is a necessary measure in order to comply with Article 9 of the Protocol. 49. Article 9 of the Second Optional Protocol makes it clear that the States must also abolish the death penalty. The NSW Council for Civil Liberties believes that the Australian federal Parliament has an international obligation to ensure that the death penalty cannot be reintroduced in the States. 54 Anderson, Downer at odds over penalty, Canberra Times, 2 August 1999, Joe Spagnolo, Killers free to roam, Sunday Times (Perth), 11 November 2007, 8 (Shadow Police Minister calls for reintroduction); and, Amanda Banks, Most want death penalty back Westpoll, West Australian (Perth) 11 July 2006, 8. See also: Selina Day, Court rules out death penalty referendum, AAP, 16 March Referendum (Death Penalty) Bill 2002 (NSW): private members bill introduced into the NSW Parliament by One Nation member of the Legislative Council, Mr David Oldfield. 57 Cynthia Banham and Robert Wainwright, PM ignites death penalty furore, Sydney Morning Herald (Sydney), 9 August 2003, 1, < 58 see: ABC News, Death penalty debate a waste of time says McGinty, News Online (13 June 2003) < Colleen Egan, MP's call for death penalty disowned, The Australian (Sydney), 26 July 2002, One Nation, Policy Document (14 March 2005) < 60 while Victoria s draft Charter of Rights and Responsibilities included a paragraph prohibiting capital punishment, the enacted version does not. 61 Kable v DPP (NSW) (1996) 189 CLR 51 (State Parliament may not confer powers on State Supreme Courts that are inconsistent with the exercise of federal judicial power). 62 see Fardon v AG (Qld) [2004] HCA 46, [190] (Kirby J dissenting). CCL BP 2005/4 Page 16 2 January 2008

17 50. For more abundant caution, it is wise to enact federal legislation adopting the Second Optional Protocol before a State reintroduces the death penalty. If a State reintroduced the death penalty, the federal Parliament could choose to pass legislation to override the State law at that point. 63 However, this would be very much after the horse has bolted and it is not entirely clear what would happen if a State court passed a death sentence before such federal legislation could be enacted. The High Court may or may not allow the federal Parliament to make such a criminal law retrospective. 64 There is no guarantee that the High Court (or federal Parliament) could save the life of the condemned citizen. 51. It is simply not enough that Australia has acceded to the Second Optional Protocol, because until the Protocol is adopted into Australian law it is not legally binding. 52. A draft Bill to adopt the Second Optional Protocol into Australian law is annexed to this paper 65 and is explained in more detail below. 4.2 Death Penalty Abolition Act The Death Penalty Abolition Act 1973 (Cth) 66 was first introduced into the federal Parliament in It finally passed both houses in 1973 and became law on 18 September The effect of the Act is to abolish the death penalty for all federal offences. 67 The Act also binds the territories The Act does not bind the States. When the Act was passed, the Second Optional Protocol did not exist and it was unclear whether the federal Parliament had the power to override State criminal laws. The High Court of Australia has since confirmed the Parliament has such power. In the case of Croome v Tasmania, 69 the Court upheld federal legislation that overrode State laws criminalising homosexuality in Tasmania. 70 To achieve this end, the federal Parliament relied on its external affairs power to adopt parts of the International Covenant on Civil and Political Rights into domestic law 71 and the constitutional provision that federal laws trump State laws Michael Walton & David Leung, The PM could protect us from the death penalty, UNSW Council for Civil Liberties (August 2003) < 64 see Zines, n 48, see Appendix 2: Death Penalty Abolition Amendment Bill 2008 on page see Appendix 1: Death Penalty Abolition Act 1973 on page Death Penalty Abolition Act 1973 (Cth) s Death Penalty Abolition Act 1973 (Cth) s 3(1). 69 Croome v Tasmania (1997) 191 CLR Human Rights (Sexual Conduct) Act 1994 (Cth). See also, [44]. 71 external affairs power: Constitution s 51(xxix). 72 inconsistency of laws: Constitution s 109. CCL BP 2005/4 Page 17 2 January 2008

18 4.3 Death Penalty Abolition Amendment Bill The Death Penalty Abolition Amendment Bill amends the Death Penalty Abolition Act 1973 (Cth) to adopt the Second Optional Protocol into domestic law, relying on the external affairs power of the Parliament. The Bill binds the States, in accordance with article 9 of the Second Optional Protocol. 74 Each section of the Bill is outlined below Sections 1, 2 and These sections are common to all simple Bills. Section 1 provides a short name for the Bill. Section 2 States that the Bill will come into law after it has been passed by both Houses of Parliament and signed into law by the Governor General. Section 3 explains that Schedule 1 amends the Death Penalty Abolition Act Section 4 (Preamble) Insert before section 1: Preamble (1) Believing that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights, (2) Recalling Article 3 of the Universal Declaration of Human Rights, adopted on 10 December 1948, and Article 6 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966, (3) Noting that Article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that abolition is desirable, (4) Convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life, (5) Noting that the death penalty has been abolished in all Australian jurisdictions since 1985, (6) Noting that Australia, desirous to undertake an international commitment to abolish the death penalty, has acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, which entered into force for Australia and internationally on 11 July 1991, (7) Recognising Australia s international obligations under the Second Optional Protocol to ensure that in all circumstances Australia exposes no one to the real risk of execution, The Parliament of Australia enacts: 57. Section 4 inserts a Preamble into the Death Penalty Abolition Act. The purpose of the Preamble is to state Parliament s intention for enacting this legislation. The Preamble assists the courts in interpreting the will of Parliament. 58. The first four recitals of the Preamble come directly from the recitals of the Second Optional Protocol. 73 see Appendix 2: Death Penalty Abolition Amendment Bill 2008 on page see Article 9: federal jurisdictions on page 29. CCL BP 2005/4 Page 18 2 January 2008

19 59. The fifth recital notes that the death penalty has already been abolished throughout Australia. The sixth recital notes that Australia has ratified the Second Optional Protocol and incorporates the final recital of the Protocol. The seventh recital acknowledges the implied obligation under the Protocol to ensure that no one is exposed to the real risk of the death penalty Section 5 (Application of the Act) Repeal section 3 and substitute: 3 Application of this Act (1) This Act applies within and outside Australia and binds the Crown in right of the Commonwealth, of each of the States and of every external Territory. (2) This Act applies in relation to, and in relation to offences under, the laws of the Commonwealth, of each of the States and of every external Territory, and, to the extent to which the powers of the Parliament permit, in relation to, and in relation to offences under, Imperial Acts. (3) This Act applies in relation to offences committed before, on or after the date of commencement of this Act, including offences in respect of which proceedings are pending at that date, and if, on that date, a person is under sentence of death for an offence in relation to which this Act applies, the sentence has effect as if it were a sentence of imprisonment for life. (4) In this section: States includes the Australian Capital Territory and the Northern Territory. 60. Section 3 of the Death Penalty Abolition Act would be replaced, though it remains substantially the same. The main change is that it extends the operation of the Act to bind the States. 61. Subsection 1 retains the application of the law within and outside Australia. The subsection also ensures that the Act binds the federal government, the States and the external territories. Note that subsection 4 says that States includes the Northern Territory and the Australian Capital Territory. 62. Subsection 2 extends the application of the Act to State laws as well as federal and territory laws. For more abundant caution, the mention to Imperial Acts is retained, in case there are prisoners to whom this still applies. 63. Subsection 3 reproduces the old subsection 4 verbatim. This subsection is preserved, just in case there are still prisoners in Australia whose death sentences were commuted by the 1973 Act. 64. Subsection 4 ensures that the Northern Territory and Australian Capital Territory continue to be bound by this Act. 75 see Obligation not to expose anyone to execution on page 10. CCL BP 2005/4 Page 19 2 January 2008

20 4.3.4 Section 6 (Object, Operation and Interpretation) After section 3, insert: 3A Object and Operation of this Act (1) The object of this Act is to give effect to the Second Optional Protocol to the International Covenant on Civil and Political Rights. (2) The operation of this Act is based on the legislative power the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution. (3) In this section: Second Optional Protocol to the International Covenant on Civil and Political Rights refers to the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, that was adopted by resolution 44/128 of 15 December 1989 at the Forty-fourth session of the General Assembly of the United Nations and that entered into force on 11 July 1991, being the Optional Protocol a copy of the English text of which is set out in the Schedule to this Act. Note: Australia acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights on 2 October B Interpretation of this Act (1) When interpreting this Act, Australian courts and tribunals may consider international law and the judgments of relevant domestic, foreign and international courts. (2) When considering foreign judgments, Australian courts and tribunals must prefer the judgments of jurisdictions that have abolished the death penalty over the judgments of jurisdictions that retain the death penalty. (3) In this section: Relevant domestic, foreign and international courts means courts and tribunals with competence to adjudicate on human rights and humanitarian law, including the International Court of Justice and the United Nations Human Rights Committee. 65. Section 6 introduces two new sections: 3A and 3B. The purpose of section 3A is to make it clear that the Second Optional Protocol is being adopted into domestic law. The purpose of section 3B is to aid courts in the interpretation of the Act. 66. Subsection 3A(1) explicitly states that the object of the amending Act is to adopt the Second Optional Protocol into Australian law. 67. Subsection 3A(2) has no legal effect, 76 but merely asserts that Parliament believes it has the power to introduce this law by exercising its external affairs power. As noted in paragraphs 44 and 54 above, the High Court of Australia has confirmed that the external affairs power can be used to introduce international treaties into Australian law, thereby overriding State laws see Australian Communist Party v Commonwealth ( Communist Party Case ) (1951) 83 CLR 1; also Heiner v Scott (1914) 19 CLR 381, 393 (Griffith CJ): the stream cannot rise above its source. 77 see also Commonwealth v Tasmania ( Tasmanian Dams Case ) (1983) 158 CLR 1. CCL BP 2005/4 Page 20 2 January 2008

21 68. The view of the Howard government was that all State parliaments should positively approve the federal Bill adopting the Protocol into domestic law. Should this still be the view of the government, then the suggested method is for the State Parliaments to reques the federal Parliament to enact legislation to adopt the Second Optional Protocol. If this suggestion is accepted, then subsection 3A(2) should also include a reference to paragraph 51(xxxviii) of the Constitution. In relation to the request power, see Death Penalty Abolition Amendment (Request) Bill 2008 on page Subsection 3A(3) clearly identifies which international treaty is being adopted into Australian law. This ensures that there can be no confusion. 70. The note at the end of section 3A has no legal force, it merely serves as information. 71. Subsection 3B(1) permits Australian courts and tribunals to consider international law and the jurisprudence of foreign and international courts and tribunals. The Australian courts are given a discretion to consider international and foreign law and jurisprudence, but that law and jurisprudence is not binding on Australian courts. 72. Subsection 3B(2) mandates that, when considering the judgments of foreign courts, an Australian court must prefer the interpretation given by courts of abolitionist nations. For example, this means that the interpretation of the Supreme Court of Canada (an abolitionist country) must be preferred over the interpretation of the Supreme Court of the United States of America (a retentionist country). This rule ensures that a decision supporting execution cannot be preferred over a decision supporting abolition. This subsection does not apply to international courts (which do not impose death as punishment) or to domestic law or courts (because capital punishment is abolished throughout Australia). 73. Subsection 3B(3) explains that relevant domestic, international and foreign courts are those that are competent in adjudicating on human rights and humanitarian law. It also includes the decisions of competent tribunals. The list of courts in this subsection is not exhaustive. The UN Human Rights Committee is singled out because it is the UN Treaty Monitoring body responsible for monitoring and interpreting the Second Optional Protocol. 78 When interpreting this Act, also of particular interest will be decisions of the International Court of Justice, European Court of Human Rights, Inter-American Court of Human Rights and the Supreme Court of Canada Section 7 (Schedule the Protocol) 74. Section 7 appends the Second Optional Protocol to the Death Penalty Abolition Act. This is similar to the way the ICCPR is appended to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). 78 see Articles 3, 4 and 6 of the Second Optional Protocol. CCL BP 2005/4 Page 21 2 January 2008

22 4.4 Death Penalty Abolition Amendment (Request) Bill The NSW Council for Civil Liberties believes that this Request Bill is unnecessary. CCL believes that it is sufficient for the federal Parliament to use its external affairs power to adopt the Second Optional Protocol into domestic law. This means that there is no need for State parliaments to pass complementary legislation. 76. The Howard government was of the view that all States must expressly agree to the adoption of the Second Optional Protocol. To ensure bipartisan support, the Federal Parliamentary Cross Party Working Group Against the Death Penalty made enquiries of the various State governments and oppositions. Before a consensus could be reached, the 2007 federal election was called. 77. Given the Howard government s view, CCL preferred a model whereby the federal Parliament relied on its constitutional request power to adopt the Second Optional Protocol into Australian law. A State Request Bill was drafted and is attached to this paper. 78. CCL reiterates its view that this Request Bill is unnecessary, however the draft Request Bill is included in this paper for the sake of completeness in case the Rudd government requires State legislation as well how does the request work? 79. Section 51(xxxviii) of the Constitution provides that: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia. 80. At the outset it should be noted that the words referring to the Federal Council of Australasia are of no significance. The Federal Council did not possess any powers exercisable at the establishment of the Constitution because it ceased to exist following the repeal of Federal Council of Australasia Act 1885 (Imp) by covering clause 7 of the Constitution. Furthermore, even if the Council had existed and enjoyed powers, that would be of no consequence considering that any such powers would have been exercisable by the United Kingdom Parliament see Port MacDonnell Professional Fishermen s Assn Inc v South Australia (1989) 168 CLR 340, 376. CCL BP 2005/4 Page 22 2 January 2008